The Danish Ombudsman – A Problematic Institution in a Democratic State

The problematic character of a state institution that accepts and thus legitimates violation of fundamental human rights in a democratic state (paragraphs 9-11).

1. The Ombudsman takes up the case

Telegram by the Ritzau press agency (23 February, 2012) announcing that the new Ombudsman Jørgen Steen Sørensen, who assumed his office three weeks ago on 1 February, 2012, has decided to take up the Koldau case upon his own initiative stating “that the case raises a number of central and fundamental questions about the public sector employees’ right to freedom of speech.”

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2. A Danish Lawyer’s Objection to the University’s Methods and the Dean’s Indifference with Legal Rules

Objection of lawyer Soon-Ah Sigsgaard (Dansk Magisterforening) to dean Mette Thunø’s admonition and its illegitimate charges (2 March, 2012), sent in copy to the Danish Ombudsman.

On 12 March, 2012, ombudsman Jørgen Steen Sørensen requested prof. Koldau to send him a comment on the account institute director Niels Lehmann had given of the case.

Lehmann’s account is a public document and can thus be accessed by Danish citizens via the Ombudsman’s office.

Prof. Koldau’s Danish Commentary. This commentary offers the entire documentation and testimonials that the dean’s consultants preferred to ignore. Section A and B offer an clear analysis of the management’s strategies to cover up its own mistakes and the violation of the employees’ rights at Aarhus University.
Since it is not the intention of this documentation to pillory individual members of the academic staff at Aarhus University, names have been blackened. However, those persons who have a distinct management office – such as the department director, the institute director, the dean and the rector – are mentioned with name, according to the public responsibility they have and are paid for.

5. Further Complaints against Aarhus University

On 26 February, 2012, the ombudsman’s assistant invited prof. Koldau to send further complaints should the university act against rules and administrative observance in the course of her case. Accordingly, prof. Koldau sent to further complaints on 28 March and 13 April 2012:

On April 9, the Danish journalist Heikki Yding (DR Østjylland) filed a complaint to the Ombudsman, stating that Aarhus University had denied him access to public documents according to the Offentligshedlov (the Danish set of laws regarding the obligation of the state administration to lay open its actions to the public).
The Ombudsman decided that the complaint was justified and exhorted Aarhus University to give Heikki Yding access to the documents.
Violating the Offentligshedlov in an additional instance, Aarhus University had not informed prof. Koldau about Heikki request and asked her if she consented to giving the journalist access to documents concerning her case.
The Ombudsman equally decided that Aarhus University thus had violated Koldau’s rights according the Offentlighedslov.
After professor Koldau had consented to grant journalist Heikki Yding access to the demanded documents, it took Aarhus University two further weeks to finally send the documents to the journalist Heikki Yding.

On 18 April, 2012, Aarhus University’s chief jurist Per Møller Madsen apologized to professor Koldau for the “misunderstanding” on part of Aarhus University regarding the the university’s failure to inform her about the request of Heikki Yding.
While Aarhus University in this less significant eventually followed the Danish law, professor Koldau never received an apology from Aarhus University regarding the violation of her numerous other rights – among those five fundamental human rights – on part of the university.

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6. The Ombudsman Drops the Case Without Examining It – Publishing a False Statement About a “Mutual Agreement” and Going Against Danish Law

On 16 May, 2012, Ombudsman Jørgen Steen Jørgensen decided to drop the case without examining Aarhus University’s violations of prof. Koldau’s right to freedom of speech and several other fundamental rights.

His official justification for this decision is, according to the letter he sent to Aarhus University and professor Koldau (German translation: click here):

By resigning from her position, professor Koldau had allegedly signed an “agreement” with Aarhus University regarding her case. Thus, it is not necessary to examine the violations of professor Koldau’s rights on part of the university management.

The public employees’ right to freedom of speech has sufficiently been clarified.

He deems that it is more important to use the resources of the Ombudsman Institution for other cases.

In his official statement on the website of the Ombudsman Institution, Jørgen Steen Jørgensen states that Koldau should have signed a “mutual agreement” with Aarhus University regarding her case.

This is a false statement. Under the threat of immediate dismissal, professor Koldau was on 16 April, 2012, forced by Aarhus University to sign an agreement that had nothing to do with her case against Aarhus University, but invariably regarded her working conditions in the period May – December, 2012.
Nothing in this agreement refers to the university’s illegal admonition and charges against Koldau as a negative sanction for her public criticism. She has thus never signed a “mutual agreement” with Aarhus University regarding her case.
In an open letter to the Ombudsman, professor Koldau protested against this false statement which Ombudsmand Jørgen Steen Jørgensen not only had published on his web site, but also sent as a press release to the Ritzau press agency. Her protest was rejected by the Ombudsmand.

As it turned out in May 2013, that is, one year after the questionable decision of the Ombudsmand, he had in fact violated Danish law with his decision.
If an employee resigns “voluntarily” because of massive chicaneries on part of the employer, this counts as “unfair dismissal” on part of the employer. Accordingly, the resignation of professor Koldau was an “unfair dismissal” – and would have obliged Ombudsman Jørgen Steen Sørensen to take up and examine her case.
As law expert, the Ombudsman knew this – just as the union Dansk Magisterforening did. They made sure that neither professor Koldau nor the Danish public were informed about this legal obligation – and their failure to live up to it.

Ombudsman Jørgen Steen Sørensen, who assumed his office twelve days before Aarhus University’s violations of prof. Koldau’s rights became public in the media, is a honorary professor at Aarhus University.

On the Aarhus University website, rector Lauritz Holm-Nilsen published a comment to the Ombudsman’s decision.
It is telling in Nielsen’s formulation of his comment that the Koldau Case suddenly has been turned into a “personnel case against Linda Maria Koldau”.
Throughout the entire debate, the university management insisted upon calling the Koldau case a “personnel matter”, thus denying to comment on the numerous questions and objections by journalists, academic staff members, students and the public.
A personnel matter, however, cannot be directed against a person – is this formulation a Freudian slip on part of rector Holm-Nielsen?

Ombudsmanden, Koldau og Den Store Bastian (detailed analysis of the Ombudsman’s decisions highlighting Jørgen Steen Jørgensens avoidance to take up the question of the right to freedom of speech and showing that Denmark offers a questionable legal security to its citizens) by associate professor Claus Emmeche, Copenhagen University, on the blog Forskningsfrihed?, 19 May, 2012 (German translation: click here)

Ombudsmand vildleder om Koldau-sag, open letter by professor Linda Maria Koldau requesting him to correct the false statement that she should have signed a “mutual agreement” with Aarhus University regarding her case, published on the blog Forskningsfrihed?, 26 May, 2012

9. Five Violations of Fundamental Human Rights in the Koldau Case

On 19 July, 2012, Linda Maria Koldau summarized the violations of five of her fundamental rights by Aarhus University in a petition to the European Parliament.

She had amply documented these violations in her complaints to Ombudsman Jørgen Steen Jørgensen. The Danish Ombudsman decided to ignore these violations, stating publicly that the “juridical status of the public employees’ right to freedom of speech has been sufficiently clarified”.
He thus publicly acknowledged that a professor at a public institution could receive an admonition with absurd and humiliating charges because of her “writings in the media” (dean Mette Thunø on 10 January, 2010).
At the same time the Ombudsman made clear that he does not deem the university’s violation of an employees other fundamental rights – such as fair working conditions and equal treatment – worthy an examination and a reprimand.

Since the Koldau Case just is the tip of the iceberg in violations of basic rights of the academic staff at Danish universities, prof. Koldau decided to inform the European Parliament about these violations, referring to the mail debates and numerous mails and comments by persons who had had similar experiences at Danish universities.

Prof. Koldau’s petition was registered by an administrative staff member with a Danish name. On 12 January 2013, prof. Koldau was informed by a staff member of the European Parliament that her petition would not be taken into consideration by the European Parliament since this specific case should be treated in the State of Denmark.

Since the Ombudsman of the Danish Parliament – who in Denmark is regarded as the highest juridicial authority regarding the conduct of public institutions against citizens – already had decided on 16 May, 2012, that Aarhus University’s violation of prof. Koldau’s rights need not be examined, prof. Koldau did not consider it commensurable to return her rightful complaint to the State of Denmark.

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10. The Fundamental Right to Fair and Just Working Conditions – Violations Openly Accepted by the Danish Ombudsman

In her complaint to the Danish Ombudsman, prof. Koldau provided ample documentation that Aarhus University had continually violated this right in her case since her hiring in 2009.
However, Ombudsman Jørgen Steen Jørgensen entirely ignored this evidence that public employees at Aarhus University are exposed to the violation of a fundamental right.

On 10 February, 2012, the Danish Minister of Education, Morten Østergaard stated in an official document:
“The university management must not dismiss employees, degrade them or exert other negative sanctions against them just because they have – within the limits of current legislation – spoken out publicly. This has amongst others the Ombudsman of the Danish Parliament confirmed several times.”
In his statement, Morten Østergaard referred to the former Ombudsman, Hans Gammeltoft-Hansen, whose public office ended on 31 January, 2012.

The new Ombudsman, Jørgen Steen Jørgensen, who assumed his office on 1 February, 2012, in contrast stated in a public discussion on 15 June, 2012, on the island of Bornholm:
“When a public employee is being dismissed because of publicly voiced criticism, we [i.e. the institution of the Ombudsman] can act. But we cannot do anything against the chicaneries the public employee is exposed to at their place of employment because of their public statements.”

This means that
1. Ombudsman Jørgen Steen Jørgensen has introduced a striking change in the interpretation of law since Minister Morten Østergaards public statement from 10 February, 2012.
2. Ombudsman Jørgen Steen Jørgensen, who in Denmark is being regarded as final authority regarding the question of the legal security of public employees, goes against the European Convention of Human Rights in his open acceptance of chicanery at a working place in Denmark.kjlkljk

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11. The Institution of the Ombudsman – By No Means a Token of Democracy

The following problem of legal security against law violations by public institutions in a democratic state is discussed in more detail in Jante Universitet vol. 3, episode “Forlig”. A specialized juridicial study on the institution of the ombudsman and its relation to legal security in a democratic state is still a desideratum.

Internationally and in Denmark, the institution of the ombudsman is regarded as the very incarnation of democracy and public responsiveness. This was in fact the explicit statement of Ombudsman Jørgen Steen Jørgensen when he assumed his position in February 2012 (cf. his article Sidste led I borgernes retssikkerhed in Politiken from 27 April, 2012).

However, few people in Scandinavia and internationally realize that, at least in Denmark, the institution of the Parliament’s Ombudsman by no means does follow up the principles of legal security in a democratic state.

In Germany and many other European countries, there exist administrative courts. Here, citizens whose rights have been violated by public offices, can file a lawsuit, which then is treated according to written law by judges of the administrative court. The judges’ decisions are legally binding.
In Denmark, an administrative court does not exist. If a public institution – such as a university – violates the laws of a citizen, the citizen has no chance sue the institution for this violation at a court that would be specialized in administrative law. They can of course sue the institution at an ordinary court – however, they will (as has happened in numerous cases of universities’ violating their staff’s rights) hear from their lawyer: “You are right – but you will never be granted your right in court. And you will lose a lot of money on it.” In some cases, Danish university staff members have nevertheless sued their employer – sometimes the files would “disappear” under strange circumstances, and usually the case would end in an “agreement,” that neither restored the staff member’s basic rights, nor made up for the loss of a career. This has nothing to do with the principles of a democratic state with a sound legal system.

Only in extreme cases – preferably if they become public in the media – the citizen may be so fortunate to have their case taken up by the Ombudsman of the Danish Parliament.
The citizen’s chances to be granted their rights are then dependent on a single person’s arbitrations – without any right to appeal against the ombudsman’s decision.

It must be underlined that a citizen only has a chance to have their case examined by the Ombudsman if they “walk the plank” – which means that they must let themselves dismiss by the employer (statement by administrative expert professor Heine Andersen, Copenhagen University, in a private mail from 21 May, 2012). Only then do they have a chance to have their case taken up. This was explicitly confirmed by Ombudsman Jørgen Steen Jørgensen on 15 June, 2012 (see above, § 10).
Any attempt to protect themselves against the employer’s chicaneries – up to the decision to resign or to take early retirement – is in contrast regarded as “mutual agreement”, which the institution of the Ombudsman takes as occasion to drop the case.
This happened not only in the case of professor Linda Maria Koldau, but likewise in the case of professor Helmuth Nyborg (Aarhus University) and numerous other public employees in Denmark.

Translated into clear words the exhortation to “walk the plank” means:
Public employees must accept chicanery and degradation at their working place and eventually go through the public humiliation of being fired – which in other European countries means a definite end to their chances to find a job again – in order to have the vague chance that the Danish Ombudsman will look at their case.

This goes against internationally acknowledged human rights.

If the Ombudsman however should end up taking a decision in favour of the citizen’s rights, this decision is not legally binding. It is a recommendation, nothing more.
In any case, the Ombudsman’s decision does not entitle a citizen whose rights have been violated by a public institution, to receive compensation for the violations and damages the public institution has inflicted upon them.

Like this:

I have no insight in the details of this case, but the general comments on Danish law are so ill founded that I fear there may be further fundamental flaws in the arguments.
The following statement: “In Denmark, an administrative court does not exist. If a public institution – such as a university – violates the laws of a citizen, the citizen has no chance sue the institution for this violation” is wrong and – given the amount of effort put into this case by whoever wrote this blog – probably willfully so.
The Danish constitution states that “the courts are competent to determine questions on the limitations of the excercise of public authority”. Special administrative courts may be created, but if they are not then the ordinary courts will consider the questions. Danish court have struck down thousands of illegal decisions and they have struck down statutes as contrary to the constitution.
The ombudsmand may be asked to look on a case, but the citizen may at any time stop this procedure by suing instead. If a public authority refuses to abide by the recommendation – not decision – of the ombudsmand then the aggrieved citizen is automatically granted legal aid to pursue the claim in the courts.
These few points must be enough to raise serious doubts about the contents of this page. Sorry to say so, because I thought Mrs. Koldau had a point to make.

This is a wonderful comment, and I be happy to make the necessary corrections of formulation on the blog, following your criticism.
My basic criticism, however, is by no means flawed, but highly necessary – this is the reason why I created this page on the blog.
I will gladly use your comment to clarify a few points in the short – and thus necessarily rather woodcut – presentation of the problems in the legal system on this page.

Your comment is precious, since it – inadvertently – illustrates a basic problem that I have met at Danish universities: The students are taught theories and made believe that these theories shows them “how the world works.” They are taught to reproduce the theories in their exam papers and the present the one or other example that “proves” that the theory is right. It is when they leave university that they must realize that real life has nothing to do with their theories – and that their education is more or less worthless to help them cope with the realities of working life.
I am a cultural historian and thus I am interested in the realities past and present. The realities of the past, as they can be carefully reconstructed from as large a body as sources as possible, help us understand the realities of the present – such as social structures, motivations of political action, the reasons behind decisions and processes.

In your comment I recognize the fatal discrepancy between theory and reality.

Let me demonstrate this by contrasting a number of your statements with the reality that many people, Danish and foreign, experience daily in the state of Denmark.

1. Administrative courts, ordinary courts and basic legal security
You state that the lack of an administrative court in Denmark actually is no problem, since a person whose rights have been violated by the authorities or a public institution can always turn to the ordinary courts.
This is right. The general problem in this situation is that the ordinary courts thus gets countless cases that would demand specialized knowledge in administrative law and “god forvaltningsskik.” Thus, the basic rule of specialization – which results in more effective work and higher quality – is being relinquished.

An example from real life: In the Koldau case, Dr. Dieter Deiseroth, Judge at the Federal German Administrative Court – thus, one of the highest German authorities with regard to administrative law – urged me several times to start a law suit in Denmark. His reasons: “Your case is absolutely clear, Aarhus University has violated six of your fundamental rights – and probably a number of Danish laws I do not know. Any German lawyer would be enthusiastic to take up your case and make a big career on it.”
Contrast this with reality in Denmark: Three different, specialized lawyers state in the same case “You are right – but you will never get your right in a court. And you will lose some 150.000 Danish Crowns in the process.”
The same statement has been reported by university staff in similar cases. Read Volume 3 of “Jante University” for the documentation – plus the authentic example of “Lise,” whose case was negotiated at an ordinary court after all had been done to make her file disappear. The result: A pathetic “forlig” (agreement), where she got three months’ payment, but her chance to get a PhD qualification was destroyed. This has nothing with right and legal security to do.

Reality in Denmark:
Take even more urgent cases, such as child custody and the kidnapping of children as “legalized” by Danish courts. By now, the European Parliament has begun to see that there is a serious problem in Denmark – with the authorities and courts supporting illegal action against children and parents’ rights. Just last week, a delegation of the European Parliament travelled to Copenhagen to invest the numerous cases that have become known – the Danish politicians and authorities did not have the courage to meet them:
Cf. http://cphpost.dk/news/eu/investigating-child-custody-claims-eu-delegation-ignored-government

This is reality – and I must say, it has nothing to do with the theories of legal security in Denmark.
In my opinion – that of a cultural historian, not a qualified expert in law and public administration – it might at least be helpful if Denmark created an legal instance for the many real cases that give evidence of the ordinary courts not working effectively and justly when public institutions violate the citizens’ rights.

As honorary professor at Aarhus University, Ombudsman Jørgen Steen Sørensen would, according to the law in other European states, not be qualified to investigate and give recommendation on cases where Aarhus University has violated the rights of its staff. He has done so in several cases, always to the disadvantage of the staff member. In the legal system of other states his procedures would be legally invalid because of clash of interests. In Denmark, nobody “dares talk about the problem” (statement of a university professor who wishes to remain anonymous).

b) Clear evidence of violations of law
As is described and analysed in “Jante University Vol. 3”, the Ombudsman ignores indisputable documentation of the violation of Danish and European law on part of the university management. In the Koldau case he has himself gone against Danish law in his decision not to investigate the case.

c) The pretext of “forlig” (mutual agreement)
Against European law (European Charter of Fundamental Rights, Article 31: Fair and just working conditions and Article 21: Non-discrimination), the Ombudsman accepts chicanery and discrimination on part of public institutions executed against their staff. When the staff member finally gives up and retires or resigns from his/her position, the Ombudsman declares this to be a “mutual agreement,” and uses this misleading juridical term to put down the case. This happened not only in the Koldau case, but also in the case of Professor Helmut Nyborg at Aarhus University and in other cases.

3. Danish mentality
As described in “Jante University Vol. 3” and more in more detail in the forthcoming English book “Educational Disaster,” Danish people are very hesitant to sue an authority – e.g. the employer – at all. They tend to “stikke piben ind” and give up their rights rather than setting their signature under a formal complaint. After all, they know how weak their legal security is – supported by their lawyers’ statement that they will not get their right in court after all.
As described in Vol. 3 of Jante University this mentality is perfect for the legal abuses and chicaneries of New Public Management.

4. The Union – Working Against the Members’ Interests
In other countries, the union (in the trilogy: “Dansk Akademikerforening”) will fight for their members’ rights. Many important causes have been won, especially if the employer so clearly violated the staff’s rights as it happens at Aarhus University.
In Denmark, the union does not fight for the member’s rights but sees its function in “making sure there is peace at the work place.” (Statement of a union representative.) As is described in “Jante University Vol. 3” this happens notoriously to the disadvantage of the union member. In the Koldau case the union has gone so far to violate further rights of the union member, such as supporting the illegal sanctions of the university management and menacing the union member to resign “voluntarily” and to keep her mouth shut about here own case.
This has nothing with legal security to do.

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In theory your statements are correct – they present what is written in Danish law.

Reality is very different. There will of course always be cases that support the theory – just as in the students’ exam papers.
But there are far too many cases showing that the theory is fatally insufficient and has nothing to do with the reality in present-day Denmark. As stated above, even the European Parliament has begun to see that legal security is seriously at fault in Denmark.

As a cultural historian I am interested in presenting this reality, which shows that there is something fundamentally wrong with the theory – in this case the theory of legal security.
It is the intention of the trilogy “Jante University” to show this reality (“episoder fra livet bag murene”) and to encourage people who experience the same abuses of their rights to speak up about these abuses and not to support this problematic system by keeping quiet in “the Danish way.”

After all, this “theory” is not just some cultural theoretical pipe dream we are talking about, but the fundamental rights of men, women and children living in Denmark.

PS:
As a scholar I would of course be happy to give my presentation a stronger foundation integrating expert knowledge on Danish law and administration. This, however, would demand a large-scale interdisciplinary project, where experts in law, administration, sociology, history, and culture work together. My answer to your comment might be understood as an impulse to launch such a project – it would, after all, be of enormous importance for present-day Danish society.